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LLB Law students get unique insight of ‘Brexit’ Supreme Court judgments

Jessica Simor QC and James Libson

Goldsmiths Law and the Britain in Europe thinktank were delighted to welcome to the College one of the UK’s leading specialists in Public, EU and human rights law, Matrix Chambers’ Jessica Simor QC, who was counsel in the first Miller case, representing the second Claimant, Dos Santos, and the Executive Partner of leading law firm Mishcon de Reya (and Head of Private there), James Libson, who had also been involved in the first Miller case and led the Mishcon legal team on the second Miller case, where the UK Supreme Court found that the Prime Minister’s decision to prorogue Parliament was ‘unlawful’ and its ‘effect upon the fundamentals of our democracy was extreme’.

James and Jessica provided expert analysis on the legal work that went into and made possible the historic Miller cases, before reflecting on next steps in the fluid Brexit process.

Jessica Simor started by noting that she didn’t think either the first or second Miller cases would actually happen. It had not occurred to her that the Government would do anything else than go to Parliament, she said, in relation to the first Miller case. It ‘seemed like a crazy idea’ that the Prime Minister would close Parliament, she observed on the second Miller case.

‘There should have been consultation, reflection, risk assessment of different options’, she insisted, ‘but instead there was public hysteria in the UK’. Debate was dominated by a ‘betrayal, honour, respect’ rhetoric, making the whole process become emotion led. So private individuals, like Gina Miller, had to step in.

On Miller (2), Jessica stressed that the government offered no justification for a 5 week prorogation (when prorogation usually lasted 4 days), adding that, had Boris Johnson provided a justification, the Court would have probably found it much more difficult to decide the case in the way that it did.

James Libson offered his reflection on how ‘our Constitution is being tested in these times’, but the upside of the otherwise convoluted Brexit process was that certain aspects of our constitutional system were working.

Giving an intriguing insight on Miller (2), James observed that in the summer of 2019 the focus initially was not on prorogation, until Boris Johnson started speaking openly about it. To Gina Miller and others, prorogation certainly looked a potentially serious case of executive overreach. It was their view that Boris Johnson’s advice to the Queen was challengeable.

Mishcon wrote to Boris Johnson to ask what position he would take on prorogation, seeking assurances on behalf of Gina Miller. His response did not provide the categoric assurances required, according to Gina Miller. This was the first step in the process that eventually led to the historic prorogation judgment.

James added that he was confident Ginna Miller would win the first Miller case, expressing the view that the Supreme Court Justices did not feel they were entering the political arena with that case. But with the prorogation case, he was ‘not nearly as confident’. Then the Government made significant mistakes such as the Prime Minister not giving evidence.

On the effect of the two cases on Gina Miller, James explained that the litigants involved in these cases had ‘brought upon themselves a whole set of risks’ that litigants shouldn’t be facing, and that the abuse that Gina Miller was subjected to was ‘absolutely abhorrent’ and she had been ‘extraordinarily brave’.

On the way forward with Brexit, Jessica Simor insisted that a confirmatory Referendum could be held in 9 weeks, if the need for a campaign and testing of the question were removed. She also predicted that it would be impossible to pass the legislation needed to give legal effect to a potential deal until the end of October. We have now seen that the lack of time to fully debate the Withdrawal Agreement Bill in Parliament is what stopped the legislation in its tracks.

Referring to the prospect of a second referendum, James Libson explained that it seemed ‘a realistic outcome now, a sign of the impossibility to predict what’s going to happen next’.

Goldsmiths’ Britain in Europe (BiE) thinktank, that sponsored the event, forms an integral part of Goldsmiths Law’s research and educational provision on Brexit, Europe and human rights. This independent thinktank, which was founded in October 2015 by our Head of Law, Prof Dimitrios Giannoulopoulos, offers students in the LLB (Law) programme unique opportunities to engage with UK and European Union policy makers, eminent legal scholars and legal professionals, third sector experts and other key parties in the debate on the relationship – past, present and future – between Britain and Europe.

 

“The State we’re in”: Brexit Britain on the cliff edge (BiE in discussion with Will Hutton)

Goldsmiths’ Britain in Europe (BiE) thinktank experts will be in conversation with one of Britain’s foremost economic and political commentators, Will Hutton, on the “state we’re in”, with Brexit, and how to avoid jumping off the cliff.

(January 29, 18.30-20.00)

Theresa May’s “EU withdrawal agreement” has been emphatically rejected by Parliament, and Britain is heading for the cliff edge.

Why has a deal that has taken more than two years to agree, and was providing practical solutions to a vast range of post Brexit complications – from the protection of EU citizens’ rights, settlement of UK’s financial obligations towards the EU, offering a transition period and a temporary solution on the Northern Ireland border, to drawing the framework for the future relationship, including a free trade area for goods, an economic partnership extending to services, investment, transport, energy and fishing, and continued security cooperation – failed so blatantly to gain support, from either end of the Brexit political spectrum?

“Remainers” may have justifiably seen in the EU Withdrawal Agreement an imperfect solution that provided far less protection, far less scope for collaboration, than current EU membership does. They may therefore have been strengthened in their conviction that nothing short of (finally) staying in the EU is going to be a convincing alternative to the status quo. But why did Brexiteers “despise” Theresa May’s deal, and what is the alternative they had to offer? Not “no deal”, surely. Between 550 to 570 MPs strictly oppose “no deal”, estimates Dominic Grieve QC MP.

Would extending Article 50 make sense at this stage, or should we now find the courage to come to terms with the near universal truth that the “Brexit process” has failed and revoke Article 50 altogether; the European Court of Justice has said the UK can do so unilaterally. But the clock is ticking.

Considering the many pitfalls of the above, can a second referendum now emerge as the only viable way forward? And if those who believe in Brexit have the “will of the people” at heart, why would they oppose such an option? Shouldn’t the people ultimately decide how we leave the EU (if they still believe we should do so)? Or is the risk of further social division so heightened that we should avoid a second referendum at all costs? And wouldn’t leaving on catastrophic “no deal” terms create further social division (and worsen the economic divide) itself?

Goldsmiths’ “Britain in Europe” experts will be entering in conversation about the above with Will Hutton, one of the most prolific British commentators on the political and economic life of the country, and Brexit of course.

Will Hutton is the Principal of Hertford College, Oxford. He is a political economist, author and columnist with a career that spans investment banking, BBC radio and TV, newspapers, consultancy, leading think tanks and heading up government commissions.

After six years in the City, he launched his career in journalism as economics editor for the BBC’s Newsnight and later for The Guardian. He went on to become editor of The Observer in 1996, for which he still writes a regular column. From 2000 until 2008 he was CEO of The Work Foundation, stepping down to work as its part time non-executive vice chair. He co-founded the Big Innovation Centre in 2011, which has become one of Britain’s leading innovation think-tanks, soon before joining Hertford College. He has made numerous TV documentaries for the BBC and Channel 4.

Will’s best-known book is probably ‘The State We’re In’ (1995), which was seen at the time as defining a new British economic and social model (that was only very partially developed by the Blair governments), and was one of the top-selling books on political economy since 1945. Since then he has published the best-selling ‘The State to Come’,  ‘The Writing on the Wall: China and the West in the 21st Century’, ‘Them and Us’ and ‘How Good We Can Be’, published in February 2015.

His latest book, written in conjunction with Lord Andrew Adonis, ‘Saving Britain: How We Can Prosper in a New European Future’ was released in June 2018.

Will headed up a government Review of the Creative Industries in 2007, and on Fair Pay in the Public Sector in 2010/11. He chaired the Independent Review on University fees between 2011 and 2014, and is currently co-leading the BBC’s review on pay transparency.

 

Britain in Europe is an independent, multi-disciplinary, thinktank, based at Goldsmiths University of London (Law). Britain in Europe members produce original research and influence public policy, offering a platform for evidence-based evaluations of Britain’s interactions with the EU and its institutions.

(Published 19 January 2019)

 

 

Benson and Giannoulopoulos on citizens’ rights after Brexit

No deal Brexit: on the road to nowhere for citizens’ rights

Prof Dimitrios Giannoulopoulos, Inaugural Chair in Law and Director of the Britain in Europe thinktank at Goldsmiths, University of London, and Dr Michaela Benson, Reader in Sociology, Research leader for the project Brexpats: freedom of movement, citizenship and Brexit in the lives of Britons resident in the European Union and a ‘Britain in Europe’ expert at Goldsmiths, University of London, provide a critique of the policy paper on citizens’ rights, published by the Department for Exiting the European Union (DExEU) on December 6th.

With the UK experiencing its deepest constitutional crisis of modern times, and amidst the drama coming from Westminster last week, few will have noticed the DExEU’s policy paper on citizens’ rights published on December 6th. But it is precisely these citizens (EU citizens in the UK, and UK citizens in the EU) who stand to be affected the most – their lives in some cases shattered – as a result of the political chaos Brexit has brought upon this country.

The paper makes for grim reading. For EU citizens in the UK, ‘no deal’ would mean a shorter deadline for applications, the loss of the right to appeal against a refusal of settlement under the scheme, the introduction of a cut-off point for family members to join EU citizens with ‘settled status’ and even a lower threshold for deportation, where EU citizens have committed minor crimes.

But a ‘no deal’ scenario does not in reality create the need for any of this. Most of the changes the policy paper advocates are a political choice and rather point to the beginnings of a ‘hostile environment’, and reverting to treating EU citizens as ‘bargaining chips’, ‘foreigners’, ‘others’.

As to UK citizens in the EU, the policy paper is simply reduced to a declaration of understanding of the uncertainty this dispersed population would face in the event of a ‘no deal’, which comes with the admission that ‘the UK cannot act unilaterally to protect the rights of UK nationals in the EU’.

In relation to practical matters of critical importance for the British in the EU, such as protecting past social security contributions, reciprocal healthcare arrangements and the right to bring EU and non-EU citizen family members back to the UK, the report makes the startling admission that the government is ‘exploring options’ and ‘will set out further details in due course’. Thirty months after the EU referendum, this is the frightening state of (no) planning for a ‘no deal’ Brexit.

Even in the case of the deal, serious issues remain for this dispersed population. It is unclear how the 27 member states intend to implement this agreement, and they have yet to make clear the administrative procedures British citizens already resident in their jurisdictions will need to go through in order to secure their status after transition. Simply, while currently processed as EU citizens with the right to Freedom of Movement, once EU citizenship is removed from British citizens, it is uncertain what their future legal status will be within these states, and whether they will be treated as Third Country Nationals.

This is just the latest in what has been an interminable rollercoaster ride for these citizens. It is a reminder of the detrimental effect Brexit has already had upon them,  and the state of precariousness they’ve been facing for so long.

Couple the above with publication of the hostile to EU citizens immigration white paper, which announces the end of free movement for them, the fact that the UK government has just dropped claims that no-deal Brexit is ‘unlikely’, and the announcement from the European Commission that it has started to implement its preparations for a no-deal Brexit, and the full extent of the predicament citizens affected by Brexit are faced with immediately becomes clear.

This is the nightmarish scenario citizens were reassured they would not be confronted with. ‘You can stay, and we want you to stay’, they said, but they didn’t really mean it.

 

New BiE members: drawing on inter-disciplinary collaborations to interpret Brexit’s effect

From politics to international trade to the economy and fundamental human rights, Brexit has the potential to unsettle existing convention and practice, and generates significant risks and opportunities, for people and institutions with wide-ranging, often conflicting, interests. We will not be able to understand, let alone negotiate, these all-important transformations, unless we give ourselves the required methodological tools. Seeing Brexit through uniquely the lens of a particular discipline risks creating a myopic view, both as to the individuals or institutions affected and the type of solution we can propose; interdisciplinary collaborations can help mitigate this risk.

BiE thinktankThe Britain in Europe (BiE) thinktank, conscious of the above, brings together Law academics and academic scholars from other disciplines, barristers, solicitors, judges, politicians, members of international human rights organisations and other third sector experts from across Britain and Europe, to provide novel solutions to Brexit’s fast-emerging complexity.

The thinktank is now delighted to welcome on board its dynamic group of experts two Goldsmiths academics whose work is at the forefront of current debates on Europe and the UK, Dr Michaela Benson, from Sociology, and Dr Will Davies, from Politics and International Relations.

Dr Michaela BensonDr Michaela Benson is a Reader in Sociology and the research lead for a UK in a Changing Europe funded research project, BrExpats: freedom of movement, citizenship and Brexit in the lives of Britons resident in the EU-27. Michaela is internationally renowned for her work in the field of migration, and has conducted in-depth empirical research on British citizens living in France, and North Americans settled in Panama. She has extensively published on what migration means for identity, citizenship and belonging.

Since the EU referendum, Michaela has been closely examining what Brexit variously means for British citizens living across the EU-27, communicating through written commentary and the project podcast. She has provided written evidence for the House of Lords EU Justice subcommittee, and co-authored the report Next Steps: implementing a Brexit deal for UK citizens living in the EU27.

Dr Will DaviesDr Will Davies is a Reader in Political Economy, and works on history of economics, neoliberalism and the present crisis of expertise. His first book The Limits of Neoliberalism: Authority, Sovereignty & the Logic of Competition looked at how regulators and policy-makers in Brussels and Washington DC applied ideals of competition, derived from the University of Chicago law and economics tradition. His most recent book is Nervous States: How feeling took over the woNervous Statesrld, which looks at the roots of the current populist reaction against technocrats, as manifest in Brexit. His writing has appeared in London Review of Books, The Guardian and The New York Times amongst others

We are delighted that Michaela and Will are joining our network of Law academics, legal practitioners, MEPs and third sector experts in the ‘Britain in Europe’ thinktank, and that we are developing an increasing capacity to rely on cross-disciplinary work – on Law, Sociology and Political Economy among other BiE disciplinary expertise – in our effort to help engineer a constructive future relationship for the UK and the EU.

Guest blog: The wrong referenda

Prof Eric Miller

Prof Eric Miller

It has become increasingly clear over the last two years that the UK, embracing direct government more than any time in its past, has had the wrong referenda, argues Prof Eric Miller, of Loyola Law School, Los Angeles, in a guest blog published by our ‘Britain in Europe’ thinktank.

Scots voted by a small-but-significant margin to pursue a future together with the rest of the United Kingdom. Then the United Kingdom voted by a much slimmer margin to exit the European Union.

But buried within that second referendum (and the southern reaction to the first one) was a hidden, third one. The results of that third one should be made explicit before the decision to exit the European Union becomes final. For within that vote was a decision by England and Wales—legally and historically a distinct national group—to go it one way, and by the rest of the UK to go it another way.

Read the blog post in full here.

Eric Miller is Professor of Law, and Leo J. O’Brien Fellow, at the Loyola Law School, Los Angeles, where he teaches criminal procedure, evidence and jurisprudence.

America’s return to isolated sovereignty (and the Brexit parallels)

In this latest blog for our Britain in Europe (BiE) think tank, Sir Geoffrey Nice QC, former Slobodin Milošević prosecutor at the ICTY and BiE expert, reacts to John Bolton’s extraordinary attack on the International Criminal Court, criticises the UK Government for not properly condemning it without reservation and draws worrying parallels with Brexit.

America’s return to a primitive post-Westphalian pre-20th Century concept of untouchable, isolated sovereignty is extraordinarily dangerous.  What is sovereignty for the US will have to be respected by the US in other countries and then by all states for all other states. It is a concept of sovereignty towards which the more extreme right wing governments in Europe – and extreme supporters of Brexit in the UK -are edging, mindless of how Hitler’s rise, and the holocaust to come, were in part possible because no other state would challenge Germany’s internal criminality however gross until too late.

By way of an earlier example, in WWI the US respected Turkey’s sovereignty, conceived in terms similar to Bolton’s as expressed yesterday, and abandoned a million or so Armenians (despite their being Christians!) to butchery and refused to intervene despite being urged by its own Ambassador to Turkey to do so.

Other countries may now follow the US ‘lead’ and intervention by the ICC or any other agency in any way into the criminal conduct of states will be challenged as contrary to state sovereignty.

This approach to sovereignty – as Raphael Lempkin realised when he coined the word ‘genocide’ and forced states to draft the Genocide Convention – would have meant the Jews could be annihilated without external intervention (and Nuremberg war crimes trials indictments prepared by the US, the UK and others actually respected this concept, although this is little understood).

The Bolton approach to US infallibility and ethical insularity will lead, ultimately, to more not less armed conflict and more not less killing of innocents.

Auschwitz

Auschwitz

Not only is the US dangerous in itself when it claims to be above international law but it becomes a truly lethal ally. Yet none of its subservient, handholding friends – such as the UK – has properly condemned without reservation this US abandonment of respect for law despite international law being the only way, in the long run, that the world can survive the natural inclination and desire of politicians to lead their citizens to death in conflict.

Bolton’s extraordinary attack on the ICC shows this US administration not just to be led by a man – supported by racists at home – without morality or ethical standards and but moving to a position where its complete freedom from oversight by internationally agreed norms, as Bolton and Trump would like, will make it free to do within its borders whatever it likes.  Abroad the isolationist approach to sovereignty will allow it to give unrestrained military support for chosen allies in defiance of the judgement of other allies or of the UN (if that institution survives).

This US administration has numbed our sensitivity to what should be completely unacceptable state conduct.  Is that why our leaders have not appreciated the threat by Bolton not only to the ICC but even to the court’s officials?  In the UK we saw that it was possible for a drift to right wing populism to allow a newspaper to condemn those attempting to maintain the law as ‘enemies of the people’.  Bolton is doing something similar but much, much more sinister.  For him, echoing the Trump election campaign, he would ‘lock up’ the international law.

Sir Geoffrey Nice QC is BiE expert, and the spokesperson for the Knowing Our Rights (KOR) research project. BiE and KOR are based at Goldsmiths and feed into the LLB (Law) programme.

New video: challenges to judicial independence in times of crisis

Our Britain in Europe think tank published this week a video from the British Academy conference on Challenges to judicial independence in times of crisis.

The video has analysis by former Lord Chief Justice, Lord Thomas of Cmwgiedd; the Justice at the UK Supreme Court, Lord Kerr; Prof Kate Malleson (QMU); Dr McDermott-Rees (Swansea) and our own Prof Dimitrios Giannoulopoulos.

Prof Giannoulopoulos, who is leading the Law programme at Goldsmiths, was the co-convenor of the conference (with Dr Yvonne McDermott Rees).

Prof Dimitrios Giannoulopoulos opening the conference

Prof Dimitrios Giannoulopoulos opening the conference

The conference was inspired by attacks at the British judiciary by the press, in the context of Brexit and the “Miller” judgment. It also had a strong international and interdisciplinary dimension, in response to similar attacks upon the judiciary abroad, in countries
as diverse as the United States, France, Poland, Greece and Turkey.

The conference also coincided with dramatic developments in the Worboys case, the London cab driver convicted of serious sexual offences against female passengers, and the attacks on the Parole Board that followed on from that. His Honour Jeremy Roberts QC, a member of the Parole Board for England and Wales and an expert in our ‘Britain in Europe’ thinktank, provided critical analysis of a number of issues relating to judicial independence arising out of the case, in two posts published at the British Academy’s blog

HH Jeremy Roberts QC

HH Jeremy Roberts QC

The first blog post appeared a few days prior to the conference and offered a useful introduction to issues that were discussed there: Three key issues about the Parole Board raised by the Worboys case.

The second followed up on discussions at the conference, concentrating on an examination of the High Court’s decision on the Worboys case.

The conference brought together a number of eminent experts in the area:

  • Dr Daniel Aguirre, University of Greenwich
  • Professor Ilias G. Anagnostopoulos, Athens Law School
  • Professor Vian Bakir, Bangor University
  • Dr Moa Bladini, University of Gothenburg
  • M Guy Canivet, former President, Cour de Cassation
  • Dame Sue Carr, Presiding Judge of the Midland Circuit
  • Professor Fiona De Londras, University of Birmingham
  • Professor Martina Feilzer, Bangor University Professor
  • John Jackson, University of Nottingham
  • Professor Kate Malleson, Queen Mary University of London
  • Professor Raphaële Parizot, Université Paris-Nanterre
  • His Honour Jeremy Roberts QC, The Parole Board for England and Wales
  • Professor Julian Petley, Brunel University London
  • Sir Konrad Schiemman, Court of Justice of the European Union
  • Dr Stephen Skinner, University of Exeter Professor
  • Professor David Sklansky, Stanford Law School

For more information on the conference see the British Academy webpage.

Prof Giannoulopoulos and Dr McDermott-Rees are continuing the conversation with participants in the conference on this all-important topic, with a view, potentially, of proceeding to publication of an edited collection that will aim to highlight the profound societal effect of attacks upon the judiciary, and offer reflection on how to counter them.

Former Lord Chief Justice, the Rt. Hon. the Lord Thomas of Cwmgiedd

Former Lord Chief Justice, the Rt. Hon. the Lord Thomas of Cwmgiedd

from left to right - Prof Vian Bakir, Judge Donald Cryan and Prof Julian Petley

from left to right – Prof Vian Bakir, Judge Donald Cryan and Prof Julian Petley